COVENANTS OF THE ACQUIRING FUND AND THE ACQUIRED FUND 5.1 The Acquiring Fund and the Acquired Fund each will operate its business in the ordinary course between the date hereof and the Closing Date, it being understood that such ordinary course of business will include customary dividends and distributions. 5.2 The Trust will call a meeting of the Acquired Fund Shareholders to consider and act upon this Agreement and to take all other action necessary to obtain approval of the transactions contemplated herein. 5.3 Subject to the provisions of this Agreement, the Acquiring Fund and the Acquired Fund will each take, or cause to be taken, all action, and do or cause to be done, all things reasonably necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement. 5.4 As promptly as practicable, but in any case within sixty days after the Closing Date, the Acquired Fund shall furnish the Acquiring Fund, in such form as is reasonably satisfactory to the Acquiring Fund, a statement of the earnings and profits of the Acquired Fund for federal income tax purposes which will be carried over to the Acquiring Fund as a result of Section 381 of the Code and which will be certified by the Trust's President and its Treasurer. 5.5 The Acquired Fund will provide the Acquiring Fund with information reasonably necessary for the preparation of the Prospectus/Proxy Statement, referred to in paragraph 4.1(o), all to be included in a Registration Statement on Form N-14 of the Acquiring Fund (the "Registration Statement"), in compliance with the 1933 Act, the Securities Exchange Act of 1934, as amended, and the 1940 Act in connection with the meeting of the Acquired Fund Shareholders to consider approval of this Agreement and the transactions contemplated herein. 5.6 The Acquiring Fund agrees to use all reasonable efforts to obtain the approvals and authorizations required by the 1933 Act and the 1940 Act as it may deem appropriate in order to continue its operations after the Closing Date. 5.7 Prior to the Valuation Date, the Acquired Fund shall have declared a dividend or dividends, with a record date and ex-dividend date prior to the Valuation Date, which, together with all previous dividends, shall have the effect of distributing to its shareholders all of its investment company taxable income, if any, plus the excess of its interest income, if any, excludable from gross income under Section 103(a) of the Code over its deductions disallowed under Sections 265 and 171(a)(2) of the Code for the taxable periods or years ended on or before December 31, 1996 and for the period from said date to and including the Closing Date (computed without regard to any deduction for dividends paid), and all of its net capital gain, if any, realized in taxable periods or years ended on or before December 31, 1996 and in the period from said date to and including the Closing Date.
The Acquisition At the Closing (as defined below), each Stockholder shall sell to Group 1 and Group 1 shall purchase from each Stockholder that number of shares of common stock, par value $1.00 per share of the Company ("Company Common Stock") as set forth opposite their respective names in Schedule II hereto in exchange for that number of shares of common stock, par value $.01 per share of Group 1 ("Group 1 Common Stock") set forth opposite their respective names in Schedule II hereto (as may be appropriately adjusted for stock splits, reverse stock splits and/or stock dividends). In the event that the Board of Directors of Group 1 approves a reverse stock split upon the recommendation of the Representatives of the Underwriters in connection with the IPO, the number of shares of Group 1 Common Stock to be received by the shareholders of the Founding Companies shall be decreased proportionately as a result of the reverse stock split; provided, however, that in the event that the number of shares of Group 1 Common Stock resulting from the reverse stock split recommended by the Representatives of the Underwriters is less than the number of shares resulting from a 4.444 for 5 reverse stock split, a 4.444 for 5 reverse stock split shall be implemented and the number of shares of Group 1 Common Stock resulting from such 4.444 for 5 reverse stock split to be received by the shareholders of the Founding Companies shall be further decreased proportionately to the number of shares that would have been issued to the shareholders of the Founding Companies had the reverse stock split recommended by the Representatives of the Underwriters been implemented. If the number of shares of Group 1 Common Stock received by a Stockholder pursuant to this Agreement includes a fractional share as a result of a reverse stock split affecting the Group 1 Common Stock, such fractional share shall be rounded up to the nearest whole share of Group 1 Common Stock.
Representations of the Acquired Funds In connection with any investment by an Acquiring Fund in an Acquired Fund in excess of the limitations in Section 12(d)(1)(A), the Acquired Fund agrees to: (i) comply with all conditions of the Rule, as interpreted or modified by the SEC or its Staff from time to time, applicable to Acquired Funds; (ii) comply with its obligations under this Agreement; and (iii) promptly notify the Acquiring Fund if such Acquired Fund fails to comply with the Rule with respect to an investment by the Acquiring Fund, as interpreted or modified by the SEC or its Staff from time to time, or this Agreement.
Effect of Merger on Capital Stock (a) The aggregate maximum consideration (the “Merger Consideration”) to be paid in exchange for the acquisition by Parent and Merger Sub of all outstanding Company Stock and all outstanding unexpired and unexercised options that have vested prior to Closing or that will vest in connection with Closing, warrants or other rights to acquire or receive any vested Company Stock, if any, and for the other covenants of the Company provided in this Agreement shall be, subject to adjustment as provided herein, an amount equal to (i) the Closing Amount, plus (ii) the Initial Order Cash Consideration (if any), plus (iii) the Performance Amount (if any), plus (iv) such portion of the Escrow Amount (if any) actually distributed to the Participating Holders pursuant to the terms herein, plus (v) the Post-Closing Adjustment (if any) payable to the Participating Holders pursuant to the terms herein. For the avoidance of doubt and notwithstanding anything herein to the contrary, the Payments Administrator shall not be responsible for processing any payments to be made at Closing, including without limitation the Closing Amount, but shall only be responsible for processing the post-closing payments expressly ascribed to it hereunder (which in no event shall include any amounts subject to wage or payroll tax withholding). (b) Subject to the terms and conditions of this Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the holder of any shares of Company Stock or Merger Sub Common Stock, each share of Company Stock (excluding any Restricted Shares to be exchanged pursuant to Section 1.9(c)) issued and outstanding immediately prior to the Effective Time shall automatically cease to be outstanding and shall be canceled and retired and shall cease to exist and will be converted automatically following the surrender of the certificate representing such shares of Company Stock in the manner provided in Section 1.14, into the right to receive, that portion, if any, of the Merger Consideration, without interest, as set forth below: (i) each share of Series A Preferred Stock issued and outstanding immediately prior to the Effective Time (excluding any shares of Series A Preferred Stock to be canceled pursuant to Section 1.6(b)(iii) and any Dissenting Shares as defined in and to the extent provided in Section 1.15) shall be canceled and converted automatically into the right to receive (A) an amount in cash, without interest, equal to the Series A Per Share Closing Amount, plus (B) the contingent right to receive, in accordance with Section 1.7 hereof, an amount equal to the Pro Rata Initial Order Cash Consideration (if any), plus (C) the contingent right to receive, in accordance with Section 1.8 hereof, an amount equal to the Pro Rata Performance Amount (if any), plus (D) an amount in cash, without interest, equal to the product of (x) the Pro Rata Share multiplied by (y) any proceeds or distributions of the Escrow Amount (if, when and to the extent distributed to the Participating Holders pursuant to the terms herein), plus (E) an amount in cash, without interest, equal to the product of (x) the Pro Rata Share multiplied by (y) the Post-Closing Adjustment (if, when and to the extent distributed to the Participating Holders pursuant to the terms herein); provided, however, that, notwithstanding anything in this Agreement to the contrary, upon allocation of Merger Consideration (including, for the avoidance of doubt, the Pro Rata Share of the Escrow Amount and Post-Closing Adjustment, as applicable, initially allocable to each share of Series A Preferred Stock, whether or not actually distributed to the Participating Holders) in the aggregate equal to $21.00 per share of Series A Preferred Stock, no holder of shares of Series A Preferred Stock may receive any further distributions of Merger Consideration in respect of such shares; provided, further, that any funds that remain undistributed following application of the immediately preceding proviso (the “Series A Overflow Funds” and together with the Warrant Overflow Funds, the “Overflow Funds”) shall be distributed in accordance with Section 1.6(b)(ii) below. (ii) each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (excluding any shares of Company Common Stock to be canceled pursuant to Section 1.6(b)(iii) and any Dissenting Shares as defined in and to the extent provided in Section 1.16) shall be canceled and converted automatically into the right to receive: (A) an amount in cash, without interest, equal to the Common Per Share Closing Amount, plus (B) the contingent right to receive, in accordance with Section 1.7 hereof, an amount equal to the Pro Rata Initial Order Cash Consideration (if any), plus (C) the contingent right to receive, in accordance with Section 1.8 hereof, an amount equal to the Pro Rata Performance Amount (if any), plus (D) an amount in cash, without interest, equal to the product of (x) the Pro Rata Share multiplied by (y) any proceeds or distributions of the Escrow Amount (if, when and to the extent distributed to the Stockholders pursuant to the terms herein), plus (E) an amount in cash, without interest, equal to the product of (x) the Pro Rata Share multiplied by (y) the Post-Closing Adjustment (if, when and to the extent distributed to the Participating Holders pursuant to the terms herein), plus (F) an amount in cash, without interest, equal to the product of (x) the Capped Pro Rata Share multiplied by (y) the amount of the Overflow Funds; (iii) each share of Company Stock, if any, held by the Company as treasury stock immediately prior to the Effective Time, shall be canceled and extinguished without any conversion thereof, and no payment or distribution shall be made with respect thereto; (iv) each share of Merger Sub Common Stock issued and outstanding immediately prior to the Effective Time shall be automatically converted into one (1) validly issued, fully paid and nonassessable share of common stock, $0.01 par value per share, of the Surviving Corporation, and all of such shares, as converted, shall thereafter constitute all of the issued and outstanding capital stock of the Surviving Corporation; and (v) each share certificate of Merger Sub evidencing ownership of any shares of Merger Sub Common Stock shall continue to evidence ownership of such shares of capital stock of the Surviving Corporation; and (vi) each share of Company Stock converted pursuant to clauses (i) and (ii) of this Section 1.6(b) shall automatically cease to be outstanding and shall be canceled and retired and shall cease to exist and each holder of a certificate representing any such share of Company Stock shall cease to have any rights with respect thereto, except the right to receive such holder’s respective portion of the Merger Consideration and all payments pursuant to this Section 1.6 shall be made in accordance with the Certificate of Incorporation.
Effect of the Merger on Capital Stock At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company, or any holder of any securities of Parent, Merger Sub or the Company:
Conversion of Merger Sub Capital Stock Each share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one newly issued, fully paid and non-assessable share of common stock of the Surviving Corporation.
Pre-Closing Transactions Prior to the purchase of the Initial Securities on the Closing Date, the Pre-Closing Transactions shall have been duly consummated at the respective times and on the terms contemplated by this Agreement, the General Disclosure Package and the Prospectus and the Representatives shall have received such evidence that the Pre-Closing Transactions have been consummated as the Representatives may reasonably request.
Merger Sub Stock Each share of common stock, par value $.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and exchanged for one (1) duly and validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation.
Merger, Consolidation, Acquisition and Sale of Assets (a) Enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a substantial portion of the assets or stock of any Person or permit any other Person to consolidate with or merge with it.
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND The obligations of the Acquired Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the Closing Date and, in addition thereto, the following conditions: 6.1 All representations and warranties of the Successor Company on behalf of the Acquiring Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and, except as they may be affected by the transactions contemplated by this Agreement, as of the Closing Date with the same force and effect as if made on and as of the Closing Date. 6.2 The Successor Company shall have delivered to the Predecessor Company on the Closing Date a certificate executed in its name by the Successor Company’s President or Vice President and its Treasurer or Assistant Treasurer, in form and substance reasonably satisfactory to the Predecessor Company, to the effect that the representations and warranties of the Successor Company made in this Agreement on behalf of the Acquiring Fund are true and correct at and as of the Closing Date, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Predecessor Company reasonably requests. 6.3 The Successor Company (on behalf of and with respect to the Acquiring Fund) shall have entered into or adopted an investment management agreement with the investment advisers as set forth in Appendix B, an Administrative Services Agreement with Deutsche Investment Management Americas Inc. (“DIMA”), a distribution agreement with DWS Distributors Inc., plans of distribution pursuant to Rule 12b-1 under the 1940 Act, shareholder services plans, a transfer agency agreement with DWS Investments Service Company, and other agreements necessary for the Acquiring Fund’s operation as a series of an open-end investment company. The investment management agreement and each such agreement and plan shall have been approved by the Successor Board, including, to the extent required by law, those trustees who are not “interested persons” (as defined in the 0000 Xxx) of the Successor Company or DIMA and who do not have a material interest in such agreement or plan or any related agreement.
